Appeal of MARIA FERNANDEZ, on behalf of her grandson DEVEN FERNANDEZ, from action of the Board of Education of the Huntington Union Free School District regarding residency.

Decision No. 16,486

(June 24, 2013)

Guercio & Guercio, LLP, attorneys for respondent,Christopher F. Mestecky, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Huntington Union Free School District (“respondent”) that her grandson, Deven Fernandez, is not a district resident. The appeal must be sustained.

In October 2011, Deven’s mother notified respondent that she had moved from petitioner’s residence within the district to an address outside the district. She signed the district’s “Student Status Change Sheet” transferring Deven’s siblings to the new district and she indicated that Deven would continue to reside with petitioner. After providing Deven’s family an opportunity to present information regarding his residency, the district’s assistant superintendent notified the family by letter dated October 24, 2011 of his determination that Deven was not a district resident. This appeal ensued. Petitioner’s request for interim relief was denied on December 6, 2011.According to respondent’s answer, Deven was subsequently admitted to school in the district pursuant to a “Temporary Order Appointing Guardian” issued by the Suffolk County Family Court on December 2, 2011, appointing petitioner as Deven’s guardian.

Petitioner asserts that she has been Deven’s caretaker since his birth and that he has continuously resided with her at her district address. Petitioner seeks a determination that Deven is a district resident entitled to attend respondent’s schools without the payment of tuition. Respondent maintains, among other things, that its residency determination was in all respects proper and that the appeal is untimely.

An appeal to the Commissioner must be commenced within30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). According to the record, petitioner received respondent’s October 24, 2011 residency determination on October 26, 2011 and the petition was served more than 30 days later, on November 29, 2011. The Commissioner has previously excused delays in residency cases where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of Faucett, 38 id. 117, Decision No. 13,996). These factors are present here. Accordingly, I will not dismiss the appeal as untimely.

Pursuant to §276.5 of the Commissioner’s regulations, my Office of Counsel sent a letter to petitioner’s counsel, dated July 25, 2012, asking whether petitioner had been awarded permanent guardianship of Deven. In response, petitioner’s attorney provided a copy of the August 17, 2012 “Order Appointing Guardian” from the Suffolk County Family Court appointing petitioner as Deven’s legal guardian. Although respondent has indicated that it has appealed to the Appellate Division, Second Department, to date, it has not submitted any determination and the guardianship order remains in effect.

     Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924). “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Poly nice, 48 Ed Dept Rep 490, Decision No. 15,927).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction. Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bona fide (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No.15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).This approach recognizes that a change in custody is a serious, life-changing event for all involved based on factors not always apparent in the context of a residency appeal to the Commissioner. Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commissioner of Education (Appeal of Naab, 48Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford,48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550,Decision No. 15,412).

In this case, the court order clearly transfers legal custody of Deven to petitioner, who resides within the district. Since the record indicates that Deven lives with petitioner, I will not look behind the order, but respect it as dispositive for residency purposes (see Appeal of Martinez, 52 Ed Dept Rep, Decision No. 16,396; Appeal ofNaab, 48 id. 484, Decision No. 15,924). Petitioner asserts that Deven is living with her, and while respondent is free to investigate whether Deven continues to live with petitioner, in the interim it must admit Deven to its schools.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Deven to attend school in the Huntington Union Free School District without the payment of tuition.

END OF FILE.